Hill v Robertson Suspension Systems Pty Ltd
[2009] QDC 165
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- Unreported Judgment
- Hill v Robertson Suspension Systems Pty Ltd[2009] QDC 165
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Hill v Robertson Suspension Systems Pty Ltd[2009] QDC 165
Hill v Robertson Suspension Systems Pty Ltd[2009] QDC 165
DISTRICT COURT OF QUEENSLAND
CITATION: | Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165 |
PARTIES: | GAIL MAREE HILL & ORS Plaintiffs AND ROBERTSON SUSPENSION SYSTEMS PTY LTD Defendant |
FILE NO/S: | BD333/09 |
DIVISION: | |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 19 June 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 June 2009 |
JUDGE: | McGill DCJ |
ORDER: | Default judgment given 20 March 2009 set aside. Declare effectual notice of intention to defend and defence filed 2 June 2009. Order plaintiffs pay defendant’s costs of the application to be assessed. |
CATCHWORDS: | PRACTICE – Default judgment – proof of service – requirements for – whether judgment entered irregularly JUDGMENTS AND ORDERS – Setting aside – default judgment – whether regularly entered – requirement for proof of service under Corporations Act Corporations Act 2001 (Cth) s 109X(1)(a) UCPR rr 107, 120, 282 Bratick v Toohey [1988] 2 Qd R 140 – followed. Commissioners of Customs of Excise v IFS Irish Fully Fashioned Stockings Ltd [1957] 1 WLR 397 – cited. Commonwealth Broadcasting Corporation Pty Ltd v Pacific Mobile Phones Pty Ltd [2008] QSC 210 – cited. Cusack v de Angelis [2007] QCA 313 – followed. Deputy Commissioner of Taxation v Abberwood Pty Ltd (1990) 19 NSWLR 530 – cited. Deputy Commissioner of Taxation v Media Press Computer Supplies Pty Ltd (2004) 53 ACSR 517 – cited. Ezi‑Frame Pty Ltd v Al‑Cote (Australia) Pty Ltd [1982] Qd R 602 – cited. Hughes v Justin [1894] 1 QB 667 – cited. Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 714 – cited. RT Co Pty Ltd v Minister for the Interior (1957) 98 CLR 168 – followed. Thomas v Deputy Commissioner of Taxation [2005] QCA 85 – cited. Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314 – cited. Vosmaer v Spinks [1964] QWN 36 – cited. Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 – cited. |
COUNSEL: | M.D. Fischer (Solicitor) for the plaintiffs S.D. Anderson for the defendant |
SOLICITORS: | S.J. Guernsey & Company Solicitors for the plaintiffs Platinum Lawyers for the defendant |
- [1]How does one prove service of a claim and statement of claim on a company? UCPR r 107 requires a document to be served personally on a company to be served as required under the Corporations Act. The Corporations Act 2001 (Cth) provides in s 109X(1)(a), relevantly, that “for the purposes of any law, a document may be served on a company by … posting it to the company’s registered office … .” The location of the company’s registered office can be ascertained simply by a search of the records of the Australian Securities and Investments Commission (ASIC). Because of the terms of the provision dealing with when a change in the address of the registered office takes effect (s 142), for practical purposes the registered office for the purpose of s 109X means that the place shown as the registered office in the records of ASIC.[1] On the face of it therefore, what is required to prove service by posting to the registered office is to prove that the documents were sent by post to a particular address, and that that address is the registered office of the company.
- [2]The significance of this question is that in this matter default judgment was signed by a deputy registrar on 20 March 2009, no notice of intention to defend having been filed on behalf of the defendant. The defendant applied on 11 May 2009 to set aside the default judgment. That raises the issue of whether the default judgment was entered regularly. It is well established that for default judgment to be entered regularly the requirements of the rules must be strictly complied with.[2] UCPR r 282 provides that “a plaintiff must prove service of a claim on a defendant in default before judgment may be given under this division against the defendant.” Furthermore, it is necessary to prove service at a particular time, because Division 2 of Chapter 9, dealing with default judgment, only applies if the time allowed under r 137 to file the notice of intention to defend has ended (r 281(1)), and r 137(1) provides that in a proceeding started by a claim, a notice of intention to defend must be filed within 28 days after the day the claim is served. Clearly in this case the 28‑day period had expired.
- [3]Ordinarily, service is proved by filing an affidavit of service.[3] The requirements for an affidavit of service are set out in r 120. Although a claim is a document ordinarily required to be served personally (r 105(1)), the effect of r 107 is that if a document otherwise required to be served has to be served on a company, it must be served in a way provided under the Corporations Act, and because r 107 does not require it to be served personally, and the Corporations Act does not speak of personal service, service under that rule and that Act is not personal service. It follows that it is unnecessary for the affidavit of service to comply with r 120(1)(a), but it must comply with paragraph (b), that is it must state the relevant dates and the facts showing the service, and it may be made on information given to or the belief of the person causing the service if the source of the information given to that person is stated.[4] Accordingly, r 120(1)(b)(i) requires the affidavit of service to state the facts showing service. By reference to the earlier analysis, that means that, where the service is by posting a document to the registered office of a company, it must show that the document was posted to a particular address, and that that address is the address of the registered office of the company.
- [4]The affidavit in the present case did not do so. Relevantly, the deponent deposed that “on the 5th day of February 2009 I served the defendant … with a claim and statement of claim a true copy of which is hereunto annexed marked with ‘A’[5] by posting a copy thereof by pre‑paid post addressed to the defendant’s address for service at: (address) 4 Pine Grove Road, Woombye, Qld, 4559.”
- [5]The reference to the “address for service” was inappropriate. Under the UCPR, in the case of a party to a proceeding started by claim, the relevant provision is r 17(6),[6] which in the case of either a party acting personally or a party for whom a solicitor acts, means an address specified as the address for service of the party or the residential business address of a party acting in person, or the place of business of the party’s solicitor. Rule 17 itself is concerned with this information on, relevantly, a claim; r 140 provides that r 17 applies to a notice of intention to defend. It follows that a defendant only has an address of service if the defendant has filed a notice of intention to defend (or has filed an address for service separately). Neither of those things had occurred in the present case and therefore in the technical sense the defendant necessarily did not have an address for service.
- [6]In a broader sense, the statement might be interpreted as an assertion that this was an address at which documents required to be served on the company could be served. Interpreted in that way, it expressed a conclusion rather than stated a fact, and was therefore inadmissible. Affidavits should state facts, not conclusions. However it is looked at, the affidavit did not state the facts showing service, relevantly that the address stated was the address of the registered office of the company.
- [7]That would have been best proved by exhibiting a copy of an ASIC search which revealed the registered office of the company. The Butterworths “Federal Civil Litigation Precedents”, edited by two Federal Court judges, has a form for an affidavit of service on a corporation (Form 300-10) which includes the instruction that the affidavit “should depose to matters establishing the registered office … of corporation …”, and provides for an ASIC search to be exhibited showing the registered office on the date service was effected.
- [8]It was, however, submitted by the experienced solicitor who appeared for the plaintiffs that the registry had never required that a copy of an ASIC search be produced to demonstrate the location of the registered office. My own investigations suggest that some deputy registrars have accepted the bald statement in an affidavit of service that a particular address is the address of the registered office of the company. If one takes advantage of r 120(1)(b)(ii) and (iii), the need to produce a copy of the ASIC search can be avoided by the deponent deposing to the location of the registered office of the company and stating that the source of that information was an ASIC search, in which circumstances the actual search would not need to be exhibited. But it seems to me that it should at least depose to the effect that: “I am informed by the records of the defendant company maintained by ASIC, which I have searched, that the registered office of that company at that time was at X (address).”[7]
- [9]It is not necessary for me to decide whether an affidavit of service is sufficient if it merely states that a particular address is the registered office of the company, but it is difficult to see how such an affidavit complies with the requirements of r 120(1)(b)(iii). It must be rare that the deponent will have personal knowledge of the location of the registered office. Otherwise, a relevant rule has not been strictly complied with, so default judgment should not be given. In any case, the present affidavit did not go that far. Indeed, it suggests that there was a failure to appreciate just what had to be proved.
- [10]I have not been able to find any authority which suggests that an affidavit merely asserting that a particular address is the address for service of a company is sufficient proof of service. In Commissioners of Customs of Excise v IFS Irish Fully Fashioned Stockings Ltd [1957] 1 WLR 397, it was held that where a provision in a schedule to the Customs and Excise Act 1952 provided that a process in an action for condemnation of goods could be served upon solicitors who had given notice on behalf of the client that the goods were not liable to forfeiture, which notice as required by the statute, and asserted that they were authorised to accept service of process on their client’s behalf, proof that the requirements of the statute had been complied with was sufficient to prove service for the purposes of a default judgment.
- [11]In my opinion, the affidavit of service filed in this case did not comply with the requirements of r 120(1)(b)(i). Accordingly, it was not a sufficient affidavit of service to comply with the requirements of r 282. There was before the registrar no other evidence of service of the claim in accordance with the requirements of the Commonwealth Act. In those circumstances, the registrar did not have material on which he or she ought to have been satisfied that r 282 had been complied with, and in those circumstances the registrar ought not to have given the default judgment. If a judgment has been given which ought not to have been given, it is irregular and the court may set it aside; indeed, it ought to be set aside ex debito justitiae.[8]
- [12]In these circumstances, it is irrelevant to prove that the address stated in the affidavit was in fact the address of the registered office of the company, so that sending the documents by post to that address did involve service of the documents on the registered office of the company. The question is not whether proper service has been proved now, but whether the registrar ought, on the material before him or her, to have given judgment.[9] That is sufficient to dispose of the application, and the default judgment must be set aside. As it happens, a notice of intention to defend and defence were filed on behalf of the defendant on 2 June 2009. That was irregular, but under r 371(2)(d), it is open to me to declare a document to be effectual notwithstanding a failure to comply with the rules, and there would be no point in requiring the defendant to file a fresh notice of intention to defend and defence. Accordingly I declare those documents to be effectual.
Defence on the merits
- [13]In fact, I heard further argument on the question of whether the judgment ought to be set aside anyway, on the basis that the amount stated as owing was not in fact owing. There are two aspects to this; if there is a dispute as to what amounts have been paid by the defendant to the plaintiff, that could be seen as giving rise to a triable issue, so that a judgment would be set aside although regularly entered, but perhaps on terms. On the other hand, where a plaintiff has asserted that the amount claimed in the proceeding remains unpaid and owing when that is in fact not the case, because credit has not been given for amounts paid by the defendant which had the effect of reducing the claim, the judgment will be regarded as irregularly entered: Hughes v Justin [1894] 1 QB 667. The distinction is between a situation where there is a dispute as to the amount owing, where the judgment may be regular, and one where the judgment was for a sum which the plaintiff knew or ought to have known was not owing, which will be irregular: Cusack v de Angelis [2007] QCA 713 at [43].
- [14]Rule 283 provides that the plaintiffs may file a request for judgment, in respect of a debt or liquidated demand, for not more than the amount claimed: r 283(2). The form for a request for default judgment, form 25, provides that one of the things to be stated in the request is: “The relief claimed remains unsatisfied (or as the case may be) as appears from the affidavit of (name of deponent) filed with this request.” In the present case, the request for judgment stated that the relief claimed remained unsatisfied and referred to the affidavit of Mr Fischer filed 20 March 2009, which said that he was informed by a representative of the plaintiffs that no amount had been received in satisfaction of the claim. If there had been an amount received in satisfaction of the claim, it follows that that affidavit was false, and the request to enter judgment was incorrect, and in those circumstances the entry of a default judgment can be seen to be irregular.
- [15]The matter is complicated by the fact that the plaintiffs’ pleading claims the amounts that the plaintiffs have charged the defendant in 44 specific invoices, and specific amounts are shown for each invoice as the amount in respect of which the defendant is currently indebted to the plaintiffs. It does not sue on the balance owing in the light of all of the financial transactions between the parties. The defendant says that a large number of payments have been made, the details of which are set out, and that credit has not been given for them. In essence in response the plaintiffs say that the various payments which have been made have been applied to other obligations on the part of the defendant to pay money to the plaintiffs, or, where payments have been applied towards the amount owing in respect of invoices included in the claim, what is claimed is the balance owing after those payments have been so applied. The plaintiffs are patent attorneys, who have been retained by the defendant in connection with various patents.
- [16]To complicate matters further, there is evidence that the parties entered into an agreement in June 2008, by which it was agreed that the defendant owed the plaintiffs $48,128.54 for professional services provided by the plaintiffs for the defendant between August 2007 and May 2008, and agreed that the debt would be paid by instalments of $1000 per week commencing 19 June 2008 until the debt was extinguished, provided that, should the defendant default on the payment the balance of the debt would become due and owing immediately, together with interest accruing on the entire amount at the prevailing rate set by the District Court of New South Wales. There is, however, nothing in the agreement to indicate that it amounted to an accord and satisfaction, so that thereafter the plaintiffs’ only remedy was to sue on the agreement rather than to sue the defendant in respect of its original causes of action for the debt, which are admitted; indeed, clause 1.2 is to the contrary.[10] The plaintiffs are not purporting to sue on the agreement, and in circumstances where the agreement does not identify the particular invoices in respect of which the sum agreed to be owing is owing, it is not even much use to the plaintiffs as an admission.
- [17]In circumstances where there are a variety of debts owed by A to B, the rules as to the appropriation of payments to debts are fairly clear. First, it is for the payer, in the present case the defendant, to apply a payment to the debt chosen by the payer (which must be communicated by the payer to the payee), and ordinarily that will be binding on the payee; if the payee is not happy, the appropriate response is to reject the payment. In the absence of appropriation by the payer, however, it is open to the payee to apply the payment in whatever way the payee chooses. Third, all this is subject to any agreement between the parties, which may provide for payments to be applied in a particular way, and if it does so, they must be applied in that way. Fourth, in the absence of any appropriation either by agreement between the parties or by either party, the law will usually treat a payment as being applied in discharge of the oldest debt first.[11]
- [18]In the present case, although there is evidence of a number of payments having been made, there is no evidence of any particular payment having been appropriated by the defendant to a particular debt, nor that within a reasonable time after any particular payment was made, that payment was applied by the plaintiffs to any particular debt. A reconciliation applying a number of payments received between June 2008 and March 2009 was put in evidence on behalf of the plaintiffs, but there was no evidence as to when those payments were so appropriated, nor indeed is there any clear evidence that the appropriation was undertaken by the plaintiffs, rather than by their solicitor when preparing the reconciliation.[12]
- [19]There is no evidence of any agreement as to the appropriation of payments, and the agreement dated June 2008 says nothing about appropriation of the various instalments of $1000 per week. It does occur to me, however, that if a payment of $1000 is made by the defendant pursuant to that agreement, or purportedly pursuant to that agreement, it could be seen as appropriated by the defendant to the debt of $48,128.54 which was the subject of that agreement, rather than, for example, any later amounts invoiced by the plaintiffs. That might well continue to be so even if the failure to pay the instalments in a timely way meant that the whole of the balance of that debt had become immediately due and payable.
- [20]It seems that on the material there is not a great deal of dispute between the parties as to the payments that have been made; the dispute seems to be in relation to the appropriation of those payments, or perhaps just as to what amounts really are payable. The affidavit of Diane Robertson sworn 2 June 2009 exhibits a list of payments said to have been made between 9 May 2008 and 18 May 2009, totalling $60,454.27. The first affidavit of Mr Robertson filed 11 May 2009 exhibits three letters dated 1 April 2009 acknowledging receipt of various payments. These lists of payments can be largely reconciled.
- [21]The two payments in the first letter appear as references E and R in the defendant’s schedule. The payments, referred to as “prepayments”, in the second letter also appear in the schedule, although the payment on 25 August 2008 is shown as $1000 in the defendant’s schedule, but cheque 122 was actually a payment of $500[13] and was shown as such in the plaintiffs’ letter. There are, however, some discrepancies: I cannot find a reference in the defendant’s material to the payment of $3500 on 8 September 2009; in the plaintiffs’ letter, the payment of $3500 dated 29 September 2008 does not appear in the defendant’s schedule, but otherwise the amounts can be reconciled. The payments for the third letter totalling $21,000 correspond to the remaining items in the defendant’s schedule, except for item E1, payment of $4800 on 18 May 2009 after the letters of 1 April 2009 were written.
- [22]There is some information as to how these payments have purportedly been appropriated in the material exhibited to Mr Fischer’s affidavit, but Exhibit MF1 is really very difficult to follow, largely because it is not comprehensive, that is to say, it does not identify all of the payments which on the plaintiff’s own material have been made, but only payments totalling $43,428.93. There is some indication of how some of the payments were applied in Exhibit MF5, but that is not comprehensive, since the last payment referred to is a cheque dated 19 September 2008, and none of the invoices referred to on that page also appear in MF1.
- [23]The difficulty arises because the plaintiffs have sued on particular invoices, and it is really not possible to know from this material whether or not payments which have been made have been properly applied by the plaintiffs with the result that the amounts claimed by the plaintiffs in respect of the specific invoices remain unpaid. This is particularly of concern because it seems that a large number of payments made since May 2008 have been purportedly appropriated by the plaintiffs to recent invoices, or even treated as advance payments for work which had not yet then been invoiced, or perhaps even been done. I am by no means persuaded by the material put before me on behalf of the plaintiffs that this has been done properly, and if it has not been done properly, then the application of ordinary principles would suggest that the payments ought to have been allocated to older invoices, which could include some of the invoices in respect of which the plaintiffs sue.
- [24]The real problems here are the way in which the plaintiffs have framed its case, and the apparent inability of the plaintiffs to put forward any clear reconciliation of the various invoices charged and the payments received. It would have been better if the plaintiffs had proceeded on the basis that it had done work for which they had charged $X, and had been paid $Y leaving a balance owing of $Z, with $X covering all of the work at least from the beginning of the period covered by the agreement. The matter is complicated by the fact that there is simply no material at all as to what invoices were covered by the agreement in June 2008; the affidavit of Mr Fischer suggests that it covered all of the debts then outstanding, but even that is not stated expressly and it may be that some of the invoices sued for dated prior to 19 June 2008 were not included in that amount. It is also not clear how the payment of $3000 on 14 May 2008 fits into that agreement, because one would assume that the figure in the agreement was the amount arrived at after that payment had been credited, but if so it is a little odd that the letter of 1 April 2009 spoke of the total payments received against “old debt” as $21,000, as though that was the amount treated as having been paid in respect of the debt covered by the agreement.
- [25]Neither side appears to be capable of putting forward a reconciliation of invoices and payments which is meaningful. The document apparently enclosed with a letter, which is Exhibit 5 in the first affidavit of Mr Robertson, is quite meaningless to me. The plaintiffs reconciliation MF1 does not deal with all of the payments in the letters from the plaintiffs dated 1 April 2009, although it is not suggested in Mr Fischer’s affidavit that those letters were wrong in any way, the second “reconciliation” MF2 simply reproduces the list of invoices and amounts which appears in the schedule of a statement of claim, and the third document which purports to be a reconciliation, MF5, only covers some of the payments.
- [26]Apart from this, there is an issue raised by the defendant about whether the invoices are properly being charged in accordance with the agreement between the parties (which neither side has put in evidence), and the defendant also alleges that it has suffered loss because the plaintiffs allowed some of its patent to lapse. It also seems curious that there is a constant barrage of invoices from the plaintiffs; for example, the schedule attached to the statement of claim lists 13 separate invoices all dated 22 August 2008, ranging in amount from $48.40 to $1802.90. For that matter, it also seems strange that the plaintiffs have apparently been continuing to do work for the defendant notwithstanding that on the face of their material they were owed large amounts of money by the defendant. The only explanation for this is the assertion in paragraph 20 of Mr Fischer’s affidavit: “Due to the nature of work of patent attorneys, the maintenance and requirements to pay accounts when they fall due is ongoing with the defendant.” I am certainly not in a position to take judicial notice of any aspect or characteristic of the work of patent attorneys, and that Delphic statement provides no enlightenment whatever on that subject.
- [27]There is one other matter that I will mention. Paragraph 13 of Mr Fischer’s affidavit claims that Exhibit MF4 is a true and correct copy of an ASIC search of the defendant company which shows the registered office at a particular address. It is nothing of the sort; on its face, MF4 is the result of a commercial bureau inquiry from Dun and Bradstreet. Something like this provides me with no confidence that the plaintiffs’ claim in this matter has been properly formulated and advanced.
- [28]It seems to me overall that, apart from anything else, there is a need for a trial in this matter because it is necessary to investigate whether the payments which have been made have been properly appropriated by the plaintiffs other than to the amounts owing in respect of the various invoices the subject of the statement of claim. I am not persuaded that the material presently available demonstrates that that is the case. Indeed, the material presently available certainly suggests that the matter is worthy of investigation, and suggests that the defendant may well have at least an arguable case that not all of the amounts claimed are owing. If it were necessary for the defendant to establish a defence on the merits to the requisite standard (which is not very high in order to set aside a default judgment), I consider that the material before me is sufficient to do that.
- [29]With regard to the explanation for the failure to file a notice of intention to defend at any time, the defendant’s explanation is simply that it never received the claim and statement of claim. The accountant whose office is the registered office of the company has no recollection of having received the claim and statement of claim, although no records are kept of incoming mail which could be checked in order to confirm an absence of receipt. However, their mail book records outgoing mail and there is no reference to any mail being sent to the defendant between 5 and 7 February 2007.[14] One would expect that if it had been received it would have been forwarded on, so this suggests that either the claim and statement of claim were not in fact received at the registered office of the company, or if they were they were not forwarded on to the persons in control of the defendant company, who remained ignorant of them. That provides an explanation for the failure to respond in a timely way. There has overall been no great delay prior to the filing of the application, and I think that there is a sufficient explanation to justify setting aside the default judgment.
- [30]Accordingly, I would set aside the default judgment anyway, even if I thought it had been regularly entered. However, the order for costs might well have been different had I not regarded the judgment as irregularly entered. When an irregularly entered judgment is set aside, ordinarily the plaintiff has to pay the defendant’s costs of the application, and there is no reason to depart from that practice in the present case.
Footnotes
[1] It follows that service at the place shown in those records as the registered office will be good service even if the office of the company is not in fact at that location: Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314 at [25]; Perpetual Nominees Ltd v Masri Apartments Pty Ltd (2004) 49 ACSR 714. There is no reason to think that in this matter the plaintiff had reason to suspect that the address shown in the ASIC record was wrong – Deputy Commissioner of Taxation v Media Press Computer Supplies Pty Ltd (2004) 53 ACSR 517 – or that the plaintiff knew that the documents had not been delivered: Deputy Commissioner of Taxation v Abberwood Pty Ltd (1990) 19 NSWLR 530; Commonwealth Broadcasting Corporation Pty Ltd v Pacific Mobile Phones Pty Ltd [2008] QSC 210.
[2] Vosmaer v Spinks [1964] QWN 36 (FC); Ezi‑Frame Pty Ltd v Al‑Cote (Australia) Pty Ltd [1982] Qd R 602 at 611; Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 at 91; Thomas v Deputy Commissioner of Taxation [2005] QCA 85 at [13].
[3] For an example of an affidavit of service being dispensed with, in unusual circumstances, see ANZ Bank Ltd v Carseldine [1969] QWN 26; those circumstances do not arise here.
[4] This overcomes the effect of the decision in Elders Finance Ltd v Invaway Pty Ltd [1991] 2 Qd R 398.
[5] It was unnecessary to annex and exhibit the claim and statement of claim: r 120(2)(b).
[6] See the definition of “address for service” in the dictionary, Schedule 4.
[7] See Butterworths “Court Forms, Precedents and Pleadings (NSW)” precedent 40.5 (affidavit of service).
[8] Bratick v Toohey [1988] 2 Qd R 140 at 144-5; RT Co Pty Ltd v Minister for the Interior (1957) 98 CLR 168 at 170; Cusack v de Angelis [2007] QCA 313 at [36].
[9] See Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd [2005] QDC 399, a case where a default judgment was set aside because, on the material before the registrar, it had not been proved that the relevant period had elapsed, even though evidence later put before the court was sufficient to demonstrate that it had.
[10] McDermott v Black (1940) 63 CLR 161 at 183-185 per Dixon J; Blue Moon Grill Pty Ltd v Yorkey’s Knob Boating Club Inc. [2006] QCA 253.
[11] Helmore “Personal Property and Mercantile Law” (7th Ed. 1965) p 48. There are also rules as to the application of payments between principal and interest, which introduced a complication which it is unnecessary to consider at the present time.
[12] He told me during argument that he prepared it.
[13] This appears from the copy of the bank statement exhibited to Mrs Robertson’s affidavit.
[14] If posted on 5 February it should have been received on 6 February.